The Lighter Side of Health Law – September 2023

AHLA's monthly podcast featuring health lawyer and blogger Norm Tabler's informative and entertaining take on recent health law and other legal developments. 

AHLA's Health Law Daily Podcast Is Here!

AHLA's popular Health Law Daily email newsletter is now a daily podcast, exclusively for AHLA Premium members. Get all your health law news from the major media outlets on this new podcast! To subscribe and add this private podcast feed to your podcast app, go to americanhealthlaw.org/dailypodcast.

Transcript

Speaker 1: 0:00

<silence>

Speaker 2: 0:06

This episode of A H L A speaking of health law is brought to you by A H L A members and donors like you. For more information, visit american health law.org.

Speaker 3: 0:22

Hi, I am Norm Taber . With this month's edition of the Lighter Side of Health Law, the telltale text trail attorney Don Brown of Maine, found himself in a situation many lawyers can identify with. He realized he had to complete 12 hours of c L E to stay in compliance with BARR requirements. He signed up for four classes. They were online. But here's the tricky part. They were the kind that prompt you from time to time to verify that you're actually present and awake. So far, so good. But then Don realized he had a scheduling conflict. Well, actually four scheduling conflicts, one with each class. That's when he had a crackerjack idea. He asked his assistant to sign in for him to each class, which is what she did. Well, wouldn't you know he got caught his defense? I only ask her to sign in for me and download classes so I could study them closely when my busy schedule allowed. But Superior Court Justice Thomas McCall observed. That's not what your text trail says. It says you wanted her to pretend to be you and sit through the classes on P L D Supreme Court affirmed finding that Don had violated both the main rules of professional conduct and the main bar rules through conduct involving dishonesty, fraud, deceit , and misrepresentation. The good news is that Don will now have time for his C L E classes because he is been suspended from law practice for one year. The Costanza variation in an episode of Seinfeld, George Costanza memorably advises Jerry with a knowing wink. Remember Jerry, if you really believe it, it's not a lie. Well , Don in North Carolina, attorney Nicole Fair , is applying a variation of that defense in the ethics case brought against her by the state bar. What did Nicole do to cause the bar to charge her? You're wondering. Well, she had a crackerjack idea for getting an acquittal of the hit and run case against her client, and like so many great ideas, it was Disarmingly simple. My client can't be convicted if the victim can't identify him as the driver, Nicole reason . So to prevent that identification, Nicole had another person, a complete stranger, sit beside her at the defense table while the real defendant hid in the lobby per Nicole's instructions. And of course, she didn't tell anyone, let alone the victim, the prosecutor, or the judge about the switcher route . Well, darn it, the judge and the prosecutor finally caught on and challenged Nicole. Then the state bar charged Nicole with fraud on the tribunal and obstruction of justice. This is where the Costanza variation comes into play. Nicole's defense quote , I genuinely believed it was an acceptable strategy. The case is North Carolina State Bar versus Fair, North Carolina State Bar Disciplinary Commission. The Midas myth updated. You remember the Midas myth? King Midas wished he could cause anything he touched to turn to gold, and we all know how that ended. Argentine Polo Star, Adolfo Cambio owned a fabulous polo mayor that produced fabulous Foles. Adolfo got together with Crestview Genetics and signed a memorandum of understanding, agreeing to work out the details of a final agreement. If Crestview could successfully clone the mayor's foals. Well , Crestview successfully cloned a fo , but the parties never got around to entering into a binding agreement. Nevertheless, Crestview cloned at least three folds. We know because without Adolfo's permission, Crestview sold all three for a hefty $2.4 million. And to make matters worse, the buyer was Adolfo's Arch Polo rival , Pegasus Rider , L L C. On top of all that, Crestview sold Pegasus and option for seven more folds from Adolfo's prized mayor. Well, all good things must come to an end, and they did for Crestview. A federal court has ruled that the M O U was not a binding contract, but merely an agreement to agree, and Crestview had no right to do what it did. But of course, the horse was already out of the barn. Or should I say the foes were already out of the mayor. The case is La Dino versus Meer, Southern District of Florida. Harvard tries a Hail Mary. A couple of months ago, I gave my glad I'm not that guy. Award to the unnamed person at Harvard responsible for giving insurance companies notice of claims. Why? Because Harvard had a $15 million claim for attorney's fees in its famous affirmative action case only. The claim had to be made by January of 2016, but it wasn't made until the spring of 2017. Yikes. Well, as I reported, the district court quickly found in favor of Zurich Insurance. Naturally, Harvard appealed. This is where the Hail Mary came in. Harvard had a new argument that had not made below the argument. Well, the policy says the claim must be quote reported by the deadline. It doesn't say we have to do the reporting, and the claim was reported, newspapers reported it, and Zurich reads newspapers. So it was reported Q E D. When the judge finally stopped laughing, he affirmed the judgment for Zurich. The case is Harvard versus Zurich First Circuit . Where's your sense of humor? Well, Lima Vic and her company Aura were boiling mad at Brittany Cville . Why? Because Brittany's online videos and posts suggested that Lima and her company lied about the cause of death of a woman they gave free services to. But the court threw Lima's case out. Why? After all, Brittany's allegations sound pretty darn serious. The answer is that Brittany's comments were clearly made as satire. How do we know because of subtle clues like the title she uses legal edutainer or the fact that she makes her comments in a quote satirical spirit and frequently reminds listeners that she's stating opinions, not facts. Or maybe it's because in all her posts and videos she wears bunny ears. That's right. Bunny ears. The case is Vic versus Coville , district of New Jersey. By the way, I'm wearing a big red clown nose right now. Employer wins wrongful termination case by proving religious discrimination. Here's a wrongful termination case with a twist. The hospital's defense is that the termination was actually based on religious discrimination. Nazarie Anderson was director of Medical services at Emory's Midtown Hospital nurse Stephanie Gutierrez worked under her. Stephanie is a Jehovah's Witness and asked not to be scheduled to work on Sunday because her religion prohibits it. Nazarie refused to accommodate Stephanie's request. Even though Emory's policies required accommodation. Stephanie complained to Emory's HR and filed an E E O C complaint during the ensuing investigations. Nazarie lied and Stephanie had audio recordings to prove it. When Emory fired Nazarie and she sued for wrongful termination, Emory won by proving religious discrimination i e nazarene's discrimination against Stephanie. So Emery won Nazarene's wrongful termination case by proving religious discrimination. The case is Anderson versus Emory 11th Circuit chalk one up four flyover country. I admitted as a mid-Westerner . I'm sometimes resentful that people on the two coasts, especially New Yorkers, look down on us. They call us flyover country as though the Midwest couldn't possibly be a destination. So I'm always on the lookout for anything that puts New York in its place. I smirked a couple of years ago when the New York Times declared that the best pizza in New York was actually in New Jersey. I smirked again last month when the publication, the American lawyer, announced the results of its annual headcount of New York law firms. Guess what? The largest firm in New York City isn't a New York City firm. It's a Chicago firm, Kirkland and Ellis. You heard correctly, the largest New York law firm is a Chicago law firm. That means that New York's largest firm is merely a branch office. I'll bet the home office sends lawyers there when they need more practice. The head guy probably says, don't worry, son. We'll call you back up to the big league when you come outta your slump complaint department, big water. I don't want to get political, but I have a growing concern with the power of what I call big water. On the way to my office this morning, I stopped to fill my car with gas. Of course, like all Americans, I was annoyed at the cost $4 and 30 cents a gallon. I remember when it was below a dollar while my tank was filling, I went into the store to buy a bottle of water. You know what, a 20 ounce bottle of Evian costs? Two 50 for 20 ounces. That translates to about $16 a gallon for water. I don't generally buy into conspiracy theories, but I've heard rumors that there's a dirt cheap pill out there that you can put into a gallon of gasoline, and the pill turns the gas into water. So you can buy the gas for say, four 30 a gallon, put the pill in, and bingo. You have $16 worth of water that costs you only $4 and 30 cents. Why isn't the pill on the market? You're wondering, 'cause of the power of the big water cartel and their lobbyists, they have suppressed it. Don't believe me. Then why does the biggest water brand of them all Evian spell naive backwards? Because they're so arrogant, they're thumbing their nose at us, taunting us for being so gullible. If you have a complaint, send it to me. Well, that's it for this month's edition. I hope you liked it. I'll be back next month with another edition of the Lighter Side of Health Law .

Speaker 2: 9:39

Thank you for listening. If you enjoyed this episode, be sure to subscribe to a H L A speaking of health law wherever you get your podcasts. To learn more about a H L A and the educational resources available to the health law community, visit American health law.org.